DR. HURT SAYS FOOD IN STOMACH FAILS TO SHOW TIME OF DEATH
Here are the important developments of Saturday's session of the trial of Leo M. Frank:
Attorneys for the defense spring a sensation by threatening a move for a mistrial because Judge Roan has exposed a newspaper headline to the jury. A compromise is effected by the judge cautioning the jury to disregard any outside influence.
Dr. J. W. Hurt, after testifying along the line taken by Dr. H. F. Harris' testimony of Friday, admits that no examination was made of Mary Phagan's lungs, and that whether death comes by strangulation can be determined only in this manner.
Dr. Hurt testifies under cross-examination that he would not attempt to say that Mary Phagan came to her death within a half hour after she had eaten merely because some cabbage, only partially digested, had been found in her stomach. He declares the time it would take to digest cabbage depends on the individual.
He also testifies that in his examination of the body he discovered no indications that would lead him to say that the girl had been criminally attacked.
Jim Conley is made ready to testify Saturday afternoon, but court adjourns at 12:30 until 9 o'clock Monday morning.
A genuine sensation was sprung at the trial of Leo M. Frank Saturday morning when Luther Rosser and Reuben Arnold, attorneys for the defense, asked the State to consent to a new trial on the ground that Judge Roan had allowed the jury to catch a glimpse of a headline in the first extra of The Georgian.
Juge Roan had laid the paper on the stand in front of him, and, according to the defense the headline across the first page could be read by the men in the jury box.
The headline said: "State Adding Links to Chain."
The defense's lawyers went into immediate conference with the judge, and a few minutes later asked Solicitor Dorsey to consent to a new trial. The Solicitor refused.
Rosser Asks Explanation.
Rosser and Arnold then came into the courtroom and asked that the jury be withdrawn.
Rosser addressed the court:
"Your honor inadvertently displayed a newspaper when you came in just now. One side was turned up with large red letters reading: 'State Adding Links to Chain.' Every member of the jury read it. I saw them leaning forward to see it.
"We don't want to make a motion for a new trial, but we want this jury called back and such explanation made by your honor as will eliminate any harm that might have been done by the jury seeing this paper."
Solicitor Dorsey Objects.
Dorsey objected to Rosser's request of Judge Roan.
"I object to your honor making an explanation as to an isolated instance," said Dorsey. "It is only fair to the State to call that jury back and ask it if it had seen any newspaper. It is only fair to the State to tell that jury that this objection of protest was registered by the defense. The jury must have seen newspapers on the streets in going to and from the hotel that had headlines in them eminently unfair to the State's case. I will ask your honor to explain the matter fully to the jury."
Judge Roan heatedly said: "Call the jury back and I will tell it what I see fit."
Attorney Rosser during the Solicitor's speech spoke in undertones, threatening a mistrial if the prosecution's request was granted.
Judge Warns Jury.
Judge Roan said to the jury when the tribunal had been returned to the jury box:
"Gentlemen of the jury, this is an
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CORONER'S PHYSICIAN DAMAGES HARRIS' EVIDENCE FOR STATE
Dr. Hurt Says That Undigested Cabbage Does Not Prove Time of Death
EXPERT FOUND NO SKULL FRACTURE; SURE GIRL WAS STRANGLED TO DEATH
Continued From Page 1.
important case. You will have to be extremely cautious and extremely careful. You are to try this case from the evidence and from nothing else. It has been suggested that you have been able to see some headlines or some writings in the newspapers which may have influenced you in your judgment on this case. I desire to tell you that you are the ones trying this case, and I desire to warn you again that nothing you see in the newspapers on the streets or in the courtroom should have any influence upon you either in respect to the case of the State or that of the defense. Let the case proceed."
The examination of witness proceeded.
The defense rallied sharply Saturday in a vigorous impressive attack on the sensational testimony of Dr. H. F. Harris, who declared Friday afternoon that Mary Phagan was killed within a half-hour after she ate dinner April 26, and that she came to her death by strangulation.
Hurt Hits Harris.
From one of the State's own witnesses, Dr. J. W. Hurt, County Physician, Reuben Arnold obtained the important admission that the time it takes to digest cabbage depends on the individual and that the only way to determine with certainty if strangulation is the cause of death is by an examination of the lungs. He admitted the lungs were not examined.
Attacking the testimony of Dr. Harris, who collapsed while testifying on the stand Friday, Arnold asked the witness if Dr. Harris' statement that Mary Phagan had come to her death within a half hour of the time she ate her noon meal was not the wildest sort of a guess. Harris had based his conclusions on the fact that the cabbage he had found in her stomach had undergone only the slightest digestion.
"Is it not true that cabbage is one of the hardest foods to digest and that the average time required to digest it is from 3 1-2 to 4 hours?" asked Attorney Arnold.
Dr. Hurt replied that he thought this was so.
No Proof in Cabbage.
Arnold then showed the specimen of cabbage taken from the stomach of the murdered girl, and called attention to the fact that it had not even been masticated, and that therefore it might have been in her stomach for several hours before she was killed.
Dr. Hurt accompanied this statement by the one, equally vital, that no examination was ever made of the murdered girl's lungs. From this testimony the defense will be able to argue that the State had no substantial foundation for its charge that the girl was strangled to death.
Arnold also forced Dr. Hurt reluctantly to admit that it was impossible for him to state positively either that the blow on the back of Mary Phagan's head had produced unconsciousness or that, on the other hand, it might not have been the actual cause of her death.
Jim Conley, who has sworn that he assisted in the disposal of Mary Phagan's body at the direction of Frank, was taken from his cell at the police station Saturday in readiness to testify during the afternoon. At this moment Chief Beavers was notified by a Georgian reporter that the trial had been adjourned until Monday morning and the negro was taken back into the station.
Chief Beavers on Stand.
Chief Beavers was one of the witnesses of the morning. An informal objection was made by Attorney Rosser to his appearing as a witness as the Chief previously had been in the courtroom as a spectator. Solicitor Dorsey explained that he had not known that he was going to call Beavers until the afternoon before. The Chief testified only to his examination of the red spots on the floor at the pencil factory. He said that he was present when the spots were chipped up and that they looked like blood to him.
Other witnesses of the day were Helen Ferguson, a factory employee, who testified that she went to the factory Friday night for Mary Phagan's pay envelope and that it was refused her; Robert Lassiter, a policeman, who found the parasol and a ball of wrapping twine at the bottom of the elevator shaft, and Dr. Hurt.
That at least three or four witnesses will be placed on the stand by the State before Jim Conley is called was indicated Saturday afternoon. Dr. Harris, who was examined Friday, it is said, will go on the stand early Monday morning for cross-examination, and following him will be one or two witnesses, experts in abdominal surgery, who will be used by the State to corroborate the testimony of Dr. Harris.
The defense, it is understood, will make a vigorous attack on the testimony of these experts.
Conley may be called Monday afternoon, although it is more than likely that the State will save him until Tuesday.
Helen Ferguson, a companion of Mary Phagan and an employee of the factory, was the first witness to be called when court resumed Saturday morning. The greatest crowd of the week besieged the courthouse clamoring for admission.
Pay Refused.
Solicitor Dorsey examined Miss Ferguson.
Witness said she was an employee of the factory.
Q. Were you at work at the factory Friday, April 25? A. Yes.
Q. Did you work that day or just go there? A. I went to the office about 10 o'clock.
Q. What conversation did you have there? A. I asked for Mary Phagan's money and was told that I could not get it. I talked to Mr. Frank.
Q. Did you ever get her pay before? A. Yes, but not from Mr. Frank.
Rosser took the witness on cross-examination.
Q. Did you know who paid off? A. No.
Q. Did you ever get Mary Phagan's money from Mr. Frank? A. No.
Q. Did you work in the metal department with Mary? A. Yes.
Detective R. L. Waggoner, who was detailed to watch Frank at the factory the Tuesday morning after the crime and who later rode to the police station with him, was the next witness called by Solicitor Dorsey.
Says Frank Wrung Hands.
Attorney Rosser raised an objection to Wagoner on account of his having been in the courtroom for twenty minutes Wednesday. Wagoner stated that he had heard nothing, and Judge Roan allowed him to testify.
Q. Where were you Tuesday, April 29? A. Across the street from the National Pencil Factory.
Q. What did you see? A. I saw Frank come to the window, wringing his hands and looking down. He did it about a dozen times.
Q. Was he nervous or composed? A. Nervous.
Q. Were you in the automobile when he was taken to the police station? A. Yes.
Q. Was he nervous? A. Yes. His leg was next to mine. It shook very much.
Rosser took the witness on cross-examination.
Q. What were you doing in front of the factory? A. Watching.
Q. Do you know whether Frank was arrested? A. He was not.
Q. Could you see whether anyone was in the office with him? A. No.
Dr. Hurt Called to Stand.
Dr. J. W. Hurt followed Wagoner on the stand.
Q. What is your business? A. County physician.
Q. How long have you held this position? A. Since January 1. Four years at another time.
Q. What are your duties? A. To appear at all inquests.
Q. Where did you graduate? A. I attended the old College of Physicians and Surgeons and also studied in New York.
Q. Did you see the body of Mary Phagan? A. Yes; Sunday morning, April 27.
Q. Describe to the jury how she appeared. A. I went to the undertaking establishment. She had a scalp wound on the left side of the head, about two inches long. The right eye was bruised. There were some broken places on the cheek and forehead, scratches on the right and left elbows and scars on right and left legs just below the knees. There was a cord around her neck. It is my opinion that she died from strangulation.
Q. Was this the cord? (Dorsey displayed a long hemp cord.) A. Yes, so it appears.
Q. Was there any swelling in the neck? A. Yes.
Q. What would that indicate? A. That the cord was put around her neck before death.
Q. What was the appearance of the scalp wound? A. It appeared to have been made by a blunt instrument from below striking upward.
Looked Like First Bruise.
Q. What about the wound around the eye area? A. The skin was not broken. It looked like it might have been made with a soft instrument.
Q. Could a fist have done it? A. Yes, it was quite possible.
Q. What do you think would have been the effect of these blows? Were they sufficient to have caused death? A. No. I would think the blow on the back of the head would have caused unconsciousness.
FOREMAN OF FACTORY AN IMPORTANT WITNESS
N. V. Darley, presented by the State, proved to be one of the most important witnesses in the trial of Frank.
Q. Did you find any evidence of assault? A. I did not discover any evidence of violence. There was some blood, but I could not say whether it was from a wound or not.
Q. What was the nature of the wounds on the elbows and the leg? A. I would say they were made after death.
Attorney Arnold took the witness on cross-examination.
Q. How did these scratches appear? Could they have been made by the body being dragged by the heels? A. No. If she were dragged, I should say she was dragged face forward. The scratches ran back as though she was dragged forward.
Cut Two and Half Inches Long.
Q. How long did you say the wound on the scalp was? A. Let me refer to my notes.
Q. You said it was two and a half inches long and Dr. Harris said it was one and a half inches long. I want to know which is right.
"Two and a half inches," said Dr. Hurt, after looking at his notes.
Q. Did you measure the wound when Dr. Harris dug up the body nine days later? A. No.
Q. You are not absolutely certain about this examination? Just sort of guessing, aren't you? A. I am not absolutely certain, but judging from the best of my ability.
Q. All expert testimony is guessing more or less, isn't it? It is just a question as to who can guess the best, isn't it? A. I expect you are more familiar with expert testimony than anybody else, aren't you?
Skull Not Fractured.
Q. You didn't see any damage on the side of the skull, did you? A. No, the skull was not fractured.
Q. The brain was not injured? A. There was some slight trace of concussion on the inside.
Q. You had to be looking for it to see it, didn't you? A. No, it could be easily seen.
Q. Did you ever hear of a test to see whether a hemorrhage on the inside would produce unconsciousness? A. No.
Q. Did you ever hear of such a question or strain on the medical profession as to answer a question like that? A. No.
Q. Were you ever asked before to examine the inside of a skull to determine whether a person was knocked unconscious? A. No.
Q. Did you ever hear of a person being killed from a blow on the head and there being no scar on the outside? A. No.
Q. Have you ever heard of persons living after a fracture having the inner and the outer table trephined and a piece taken out and then living? A. Yes.
Results Always Uncertain.
Q. You can reduce almost every faculty of the brain without producing death? The sight, the hearing? A. Yes.
Q. Can you tell me what faculty of the brain was located where this blow was struck? A. No, I don't believe I can.
Q. One thousand different effects could be produced without producing death or unconsciousness? A. Yes.
Q. What makes you say that one little blow could have produced unconsciousness? A. I just believe it.
Q. That little hemorrhage was not what enabled you to say that she was knocked unconscious? A. No. The exterior appearance was on what I based my opinion, but I strengthened it by the extent of the contusion on the inside.
Q. How do you know strangulation killed her? A. I could find no other cause.
Q. What about the windpipe and the lungs in strangulation? A. What do you mean?
Q. How do the lungs appear? A. Congested.
Q. You never examined the lungs? A. No.
Q. Why do you say strangulation caused her death? A. Because I found the rope deeply imbedded in the neck.
Not Sure About Assault.
Q. Looking at that girl that morning would you say that she was ravished? A. I haven't said so.
Q. Will you say so? A. I do not know.
Q. You found no external signs of violence? A. No, but my examination was not final.
Mr. Dorsey objected and was sustained.
Q. There are a great many things to cause a little inflammation? A. Yes.
Q. Were you present at the first post-mortem examination? A. Yes.
Q. Dr. Harris took the body a second time, didn't he? A. I don't know.
Q. Dr. Harris is a sort of specialist on post-mortems, isn't he? A. I don't know.
Solicitor Dorsey made a side remark that Mr. Arnold's cross-examination of the witness was a pedantic parade.
Q. Doctor, it depends on the individual just how soon cabbage is digested, doesn't it? A. Yes; some digest it sooner than others.
No Rule for Digesting Cabbage.
Q. Isn't each man a law unto himself? A. Yes; more or less.
Q. Cabbage is one of the hardest things of the world to digest, isn't it? A. Yes; it is generally regarded as hard.
Q. Doesn't it take from three to four hours to digest cabbage? A. Yes; three or four hours to thoroughly digest it.
Q. It depends a great deal on how well it was chewed, and how much saliva flowed down, doesn't it? A. Yes. Masticating helps digestion.
Q. Suppose a little girl in a hurry to catch a car hurriedly ate some cabbage and allowed it to go down unchewed. Wouldn't it take much longer to digest the unchewed part? A. Yes.
Q. Don't you think a doctor is making a mighty wild statement to get up here and state that a piece of unchewed cabbage had not been in a stomach
"I object," said Dorsey. "That is a question for a jury, and not Dr. Hurt."
"I thought it was wild," said Mr. Arnold.
"I object to that," returned Dorsey.
"I withdraw it," said Mr. Arnold.
"It was entirely gratuitous and should never have been put in," said Solicitor Dorsey. The Solicitor was sustained.
Death Stops Digestion.
Q. Does death stop digestion? A. Yes, sir; I think it does.
Q. When a person becomes unconscious, does digestion stop? A. I rather think so.
Q. If you ate something and went to sleep, digestion would continue? A. Yes.
Q. Why, then, does digestion stop when a person is unconscious? A. It is an unnatural unconsciousness.
Q. Aren't the gastric juices and blood the only two things that have anything to do with digestion? A. Yes.
Q. Well, do they die when a person becomes unconscious? A. No, but the stomach is partially paralyzed.
Q. Didn't you say it was a wild guess to say how long she was unconscious until the time she died? A. No, I don't think I did.
A mass of testimony followed that is unprintable. In the course of it, Dorsey said:
"I object to these comparisons."
Judge Roan He has not asked any question that was a comparison.
Arnold I withdraw the question.
Dorsey I thought so.
Arnold Then I won't withdraw it.
Rosser Don't pay any attention to Dorsey, Rube.
Arnold All right; I withdraw it.
The witness left the stand and was followed by Detective R. L. Waggoner.
Cabbage Not Long in Stomach.
Q. Have you ever experimented or not with the digestion of food? A. I have.
Solicitor Dorsey showed Dr. Hurt samples of cabbage and bread which had been taken from a healthy person's stomach after remaining there one hour, and the samples taken from Mary Phagan's stomach, both of which were submitted by Dr. Harris Friday.
Q. How long would you say this cabbage was in Mary Phagan's stomach before death occurred? A. Not very long.
Attorney Arnold objected. "Your honor," he said, "this is unfair. For it is obvious that this cabbage was not chewed. This witness has testified that it takes from three to four hours to digest cabbage; also he has said the cabbage said to have been digested in one hour might have gone into the stomach almost in as liquid form as it now appears. It is not a fair comparison, because the two samples of cabbage did not go into the stomach in the same form."
Jury Gets Breathing Spell.
While Solicitor Dorsey was looking up an authority the jury was allowed to retire for a breathing spell.
Dorsey: "On that proposition I have this to say: Anyone can give an opinion, provided they give the fact on which the opinion is predicated. I don't know how many teeth Mary Phagan had; I don't know whether this cabbage was cooked a long time or a short time; I don't know that this man had as many teeth as Mary Phagan; I don't know that he chewed it as much or as little as she did; I don't know that the cabbage she ate was as highly seasoned as the cabbage he ate, or whether it was seasoned at all. I insist, your honor, that the jury can draw its own conclusions of the value of this witness' testimony."
Mr. Arnold: "Your honor, the witnesses tell us it takes at least two to four hours to digest cabbage. We do not contend that either of these specimens were digested. We merely say they are in a certain state of digestion."
Judge Roan: "Put your question again, Mr. Dorsey. I want to get it straight before I rule."
Headline Upsets Trial.
At this moment Judge Roan held up a Georgian in which headlines reading "State Adding Links to Chain" were visible to the jury for a moment. Instantly Attorneys Arnold and Rosser were on their feet. Rosser spoke.
"Just a minute, your honor, we want to make a motion."
At this moment Arnold leaned over and spoke to Rosser.
"We will ask you to excuse us for a moment, judge," said Rosser, "while we confer."
Arnold and Rosser retired to a rear room, remarking aside as they went that they might make a motion for a new trial, as they were certain the jury had read the headlines in the paper.
In private conference they asked Dorsey to consent to a new trial and he refused.
After a five minutes' conference they returned to the courtroom and Attorney Rosser addressed the court and requested that the jury be withdrawn.
Says Jury Saw Paper.
"Your honor inadvertently displayed a newspaper when you came in just now," said Rosser. "One side was turned up with large red letters reading: 'State Adding Links to Chain.' Every member of the jury read it; I saw them leaning forward to see it.
"We don't want to make a motion for a new trial, but we want this jury called back and such explanation made by your honor as will eliminate any harm that might have been done by the jury seeing this paper."
Dorsey objected to Rosser's request of Judge Roan.
"I object to your honor making an explanation as to an isolated instance," said Dorsey. "It is only fair to the State to call that jury back and ask it if it had seen any newspaper. It is only fair to the State to tell that jury that this objection of protest was registered by the defense. The jury must have seen newspapers on the streets in going to and from the hotel that had headlines in them eminently unfair to the State's case, I will ask your honor to explain the matter fully to the jury."
Judge Explains to Jury.
Judge Roan heatedly said: "Call the jury back and I will tell it what I see fit."
Judge Roan said to the jury when the tribunal had been returned to the jury box:
"Gentlemen of the jury, this is an important case. You will have to be extremely cautious and extremely careful. You are to try this case from the evidence and from nothing else. It has been suggested that you have been able to see some headlines or some writings in the newspapers which may have influenced you in your judgment on this case. I desire to tell you that you are the ones trying this case, and I desire to warn you again that nothing you see in the newspapers on the streets or in the courtroom should have any influence upon you either in respect to the case of the State or that of the defense. Let the case proceed."
Examination Resumed.
Dorsey was permitted to put his question to Dr. Hurt:
Q. How long would you say this cabbage was in Mary Phagan's stomach before death occurred? A. I would say that it was a much shorter time than the other.
Q. What kind of unconsciousness is sleep? A. Natural.
Q. Are any of the functions arrested? A. The brain.
Q. What kind of unconsciousness does violence produce? A. Unnatural.
Q. Are any of the processes of digestion arrested or delayed? A. Yes.
Q. Have there not been instances of a blow on the head when the skull was fractured and death did not ensue? A. Yes.
Attorney Arnold took the witness on the recross-examination.
Q. You said some of the processes were delayed. What are they? A. Motor and sensory nerves.
Processes Dormant in Sleep.
Q. Are they not dormant in sleep? A. Yes.
Q. How do they affect the blood and the breathing? A. Not at all.
Q. Then how do they affect digestion? A. I don't know.
Q. When a man is sleeping, are not all the elements of unconsciousness the same? A. Yes.
Q. You were shown three bottles by Mr. Dorsey. Can you say to what extent this food was digested? A. No, sir.
Q. This could have been taken as a gruel and it would have been in this shape, wouldn't it? A. Yes.
Q. On the other hand, this man might have had a stomach that could digest a 10-penny nail? A. Yes.
Q. You say that a blow on the back of the head will cause the eyes to blacken? A. It might.
Dr. Hurt was then excused and was followed on the stand by Chief of Police Beavers.
Chief Beavers on Stand.
As Chief Beavers took his seat Mr. Rosser interposed with the question:
Q. Chief, have you been sitting in the courtroom? A. Not this morning.
"I did not know I was going to use him until this morning," returned Dorsey. The Solicitor then questioned the witness:
Q. When were you at the National Pencil Factory? A. Tuesday after the crime was committed.
Q. Did you see any blood spots near the ladies' dressing room on the second floor? A. Yes, I think it was Tuesday I saw them.
Attorney Rosser objected to Beavers testifying because the Chief had heard part of the trial. His objection was overruled.
Q. How did they appear? A. There were spots on the floor that looked like blood.
Rosser took the witness on cross-examination.
Q. That blood was chipped up early Monday morning, wasn't it? A. I was there when it was chipped up. If it was Monday, I was mistaken in saying Tuesday.
Q. Chief, you did not know it was
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PAGE 8, COLUMN 1
Coroner's Physician, Under Cross
Examination, Hits Testimony
Given by Dr. Harris.
Continued From Page 2.
blood, did you? A. I took it for blood.
Q. You are not an expert? You couldn't tell as well as a chemist who made an analysis, could you? A. No, I am not an expert, but I took it for blood.
Chief Beavers then left the stand and Policeman Bass Rosser was called. He did not answer and Policeman Robert Lassiter took the stand. Dorsey examined him.
Q. Were you with the policemen called to the National Pencil Factory on the night of April 26? A. Yes.
Q. Did you find this parasol? A. Yes.
Q. Where? A. At the bottom of the elevator.
Q. Anything else? A. A ball of wrapping twine beside the parasol.
Rosser cross-examined the witness.
Q. Did you see evidences of something having been dragged along the floor of the basement? A. Yes. Some distance from the elevator shaft.
Shook Factory Door.
Q. Didn't you testify before the Coroner's jury that you found this evidence about the foot of the ladder? A. I don't remember that I did.
Q. You were on the beat in front of the pencil factory, were you not? A. Yes, until 12 o'clock at night.
Q. You tried the back door of the factory about 10 o'clock? A. Yes. I shook it but didn't try to open it.
Q. Was it open or closed? A. It was closed.
Dorsey took the witness on redirect examination.
Q. Do you know whether the elevator comes down flat on the ground? A. No.
Q. How did you go down into the basement? A. By a stepladder.
Lassiter was excused.
Sergeant L. S. Dobbs, of the police force, was then called, but failed to answer.
Judge Roan then adjourned court until 9 o'clock Monday morning.
As the case stood Saturday morning, these are the strong links in the State's case:
Mary Phagan left her home at 11:45, according to her mother, after having eaten some cabbage.
The girl arrived at the factory between 12:05 and 12:10, according to Frank's own statement before the Coroner's jury.
Monteen Stover looked into Frank's office between 12:05 and 12:10 and says he was not there.
Dr. H. F. Harris, Secretary of the State Board of Health, testifies that the condition of the cabbage taken from the girl's stomach shows conclusively that she died within about half an hour after it was eaten. This would make the time of death about 12:10 a few minutes before or after.
Claims Negro Is Eliminated.
Mrs. Arthur White testifies that when she left the factory at about 1 o'clock a negro, presumably Conley, was sitting on a box on the first floor. This, according to the State, eliminates the negro as the slayer, because, according to its expert evidence, the girl must have been killed some time before that.
The defense's attack on all this testimony and reasoning was expected to be spirited and bitter, and until it has been made it is impossible to determine how much weight testimony like Dr. Harris' purporting to fix almost to the minute the time it takes to digest cabbage will have with the jury.
PAGE 2, COLUMN 7
Will 5 Ounces of Cabbage Help Convict Leo M. Frank?
Are five and a half ounces of cabbage to be the principal factor in sending a man to the gibbet?
If the prosecution is warranted in its belief in the vital and incriminating importance of the testimony of Dr. H. F. Harris, director of the State Board of Health, this is exactly the outcome to be expected in the trial of Leo M. Frank, charged with the murder of little Mary Phagan.
It remains, however, for the State to show explicitly just how the sensational statements made last Friday afternoon by the medical expert any more clearly connect Leo Frank with the terrible crime than they connect Jim Conley, the negro, who was skulking in the National Pencil Factory at the same time. The testimony of Mrs. Arthur White is relied upon to do that very thing.
State Plays High Card.
The Harris testimony was without doubt the highest card the prosecution has played since the trial of Frank started. No other evidence ever has been brought out in the three months of the murder mystery that fixed so definitely and apparently so far beyond dispute the time that the pretty factory girl met her death.
As the testimony stands, no opportunity having been given for cross-examination or refutation, it is easily the most damning that has been placed before the jury. It will remain so until the lawyers for the defense are able to attack the doctor's testimony or are given the opportunity to attach to it a significance entirely different than that advanced by the State.
Dr. Harris analyzed the contents of the murdered girl's stomach. He found there 160 cubic centimeters, or about five and two-fifths ounces, of cabbage and biscuit. This was the meal Mrs. J. W. Coleman, Mary's mother, testified that her daughter had eaten just before she left home on the day of the tragedy.
Killed at Early Hour.
The process of digestion had barely begun. Dr. Harris showed two specimens of cabbage which had been in healthy men's stomachs for an hour. They had been reduced to an emulsion. The cabbage taken from the stomach of Mary Phagan still showed the texture of the vegetable's leaves. The digestive fluids seemed to have acted scarcely at all. The presumption was, therefore, said Dr. Harris, that the little girl had met her death within half an hour after she had eaten the simple meal at her home in Bellwood and had left for the pencil factory. At the most, that was three-quarters of an hour.
Dr. Harris gave his testimony with a professional assurance, the effect of which can be counteracted only by the uttermost skill of Luther Rosser and Reuben Arnold. He was positive that the girl was killed within a half or three-quarters of an hour after she had eaten.
This meant that she was attacked and murdered between 12:05, which is about the time the State believes she entered the factory, and 12:20. It was at 12:05 that Monteen Stover said she entered and found Frank absent from his office.
Describes Wounds Vividly.
The courtroom was hushed as Dr. Harris described the wounds of the girl in a manner that vividly portrayed the State's theory of how the girl met her death.
She was attacked near the lathing machine. There was a struggle. Her assailant, infuriated at her resistance or fearful of the approach of persons, struck her fiercely over the right eye. Dr. Harris described the injury. It must have been made with the fist, he said, or with some soft instrument, as there were few signs of abrasion of the skin, only a swelling and discoloration.
The blow felled the girl to the floor. She struck her head against some hard substance. Dr. Harris indicated this by testifying that the skin above the wound on the back of the head had been shoved upward slightly, a circumstance which would hardly have obtained had the blow on the back of the head been delivered by a club or other instrument.
Further to clinch the State's indictment, charging strangulation, Dr. Harris was positive that the blow on the back of the head could not have caused death. It remained for the assailant to choke the unconscious little girl. There were indications of a criminal attempt before the girl's death. Of all this the medical expert told while Leo Frank looked on him with the same speculative expression he had given the other witnesses. The accused showed neither by the flicker of an eye lid nor the paling of a cheek that the graphic reproduction of what the State regarded as the circumstances of the gruesome crime had affected him in the least.
If the prosecution is able to establish the accuracy of the conclusions reached by Dr. Harris as a result of his analysis and examination, it then will ask:
"If Jim Conley is the murderer of Mary Phagan and attacked her between 12:05 and 12:20, how did he happen to be dozing on a box by the side of the stairs on the first floor when Mrs. Arthur White came down stairs at about 12:50?"
As it stands, the testimony of Dr. Harris is not by any means conclusive. It is, however, far the most damaging evidence that has been submitted.
An interested public is awaiting the answer that the defense will make.
PAGE 3, COLUMN 1
LUTHER ROSSER EXEMPLIFYING THE GENTLE ART OF CROSS-EXAMINING
To the casual spectator who feels no personal interest in the outcome of the Frank trial, the one great feature of the courtroom is the cross-examining of the State's witnesses by Luther Z. Rosser. Rosser roars, Rosser whispers, Rosser threatens, Rosser pleads, Rosser insinuates, Rosser cajoles, Rosser jests.
At the left is shown Rosser holding his arms out as though to receive and clasp to his breast the answer about to come to a difficult question he has put.
At the right is Rosser grinning sarcastically. A witness for the State has just said that his memory was as fresh after two years as two days.
Rosser gently starting a battery of questions.
Rosser thundering, his face clouded by anger
PAGE 3, COLUMN 1
DR. HARRIS SHOWS FRANK HAD CHANCE TO KILL GIRL
By JAMES B. NEVIN
The testimony of Dr. Roy Harris, chairman of the State Board of Health, and one of the most learned and approved physicians in Georgia, was dramatic, both in its substance and in the manner of its delivery Friday.
It was not calculated to help Leo Frank and it did not.
The exhibition of a portion of the contents of the dead girl's stomach, for the purpose of approximating the time of her death, held breathless the packed courthouse and the fainting of the physician during the progress of his testimony gave a final touch of melodrama to the trial that thrilled the audience as nothing else has thus far.
Dr. Harris impressed me, too, as believing in Frank's guilt I do not know that he does believe that way, it merely happens that he seemed so to impress me.
And if he impressed that jury as he impressed me, then the things he testified may, if the remainder of the case against Frank holds together, prove eventually to be the defendant's undoing.
Shows He Had Chance.
To be sure, the State has not yet fixed the crime definitely on Frank but it HAS definitely shown, unless its witnesses be impeached, which is highly unlikely, that Leo Frank MIGHT have murdered Mary Phagan and that he DID have the opportunity to accomplish it.
Having shown that the OPPORTUNITY was there, and that the murder likely was consummated during the time limits of that opportunity, the remaining elements of the case need but to be knitted properly together to make dark indeed the outlook for Frank.
Frank himself, Monteen Stover, Mrs. White and Dr. Harris they together form a chain thus far apparently strong and dangerous!
That, from the standpoint of the defense, however, is the worst view to take of it.
It must be remembered that the defense as yet has introduced no witnesses. Such advantage as it so far has gained and it has won many points it has gained by wringing from the State's own witnesses matters of fact favorable to Frank.
When the defense comes to tell its story it may be confidently anticipated that additional weak points in the State's case may be discovered. The only question is, will they be found SUFFICIENTLY weak to cause the entire chain to fall apart?
Defense Seeks Weakest Link.
A chain is, of course, only as strong as its weakest link. Will the defense be able to locate the State's weakest link? And having located it, will it, can it be strained to the point of giving way?
That is the perplexing and grim puzzle that Rosser and Arnold are contemplating from one standpoint and to-day Dorsey and Hooper from the other.
The black, forbidding shadow of the negro, Jim Conley, has fallen heavily athwart the courtroom in the old City Hall, where Frank is battling for his liberty, his good name and the restoration of his status as an upright and honorable man among his fellows.
The State is paving the way to the climax of its case it is leading up, and with considerable skill and adroitness, to the test of its biggest asset or its most tremendous liability, as the case may be Jim Conley, confessed accessory after the fact of Mary Phagan's murder and by many suspected of being the principal to the murder.
Somehow it seemed to me that Luther Rosser grew more and more cautious in his cross-examining Friday and Saturday, and certainly Reuben Arnold appeared to weigh well his words and carefully propound his questions.
Dorsey Has Temper in Leash.
Dorsey, too, has his temper much more thoroughly in hand and Hooper?
Hooper is the same as ever smiling, calm, deliberate, rarely speaking at all, save to whisper directing words into his associate's ear now and then.
When Jim Conley is on the stand, Leo Frank will be face to face with the crisis in his trial either Conley will leave the stand Frank's final deliverance and refuge, or his eternal damnation on earth!
For this is a battle in truth to the very death a battle in which quarter is being neither given nor asked!
It means hope, and love, and life, and liberty to Frank, or it means !
I looked long and earnestly into the faces of those twelve "good men and true," the "gentlemen of the jury" on Friday afternoon.
To me, the Frank jury appears to be much above the average.
A composite picture of it would indicate, I suspect, intelligence, level-headedness, business knowledge and poise.
If it is the sort of jury I think it is, it is just the sort of jury that should try a case of such unusual quality as the one it now has in hand.
I am assuming that a vast majority of Georgians are hoping sincerely to see the truth of this famous case established that it is largely an abstract proposition to the average man.
The point, however, is not so much what any one of us thinks the point is what does that JURY think?
The impressions that evidence produce are varied and sometimes marked. One never can exactly and precisely say which way it will cut.
And right here my mind goes back involuntarily to Dr. Roy Harris, and his remarkable testimony.
Undoubtedly the defense will have to put on its thinking cap, straight and firmly set, if it hopes not only to upset that testimony and discredit it as particularly and relatively in point, but to remove the profound impression it may have made upon the jury.
It is, after all, largely upon mental impression perhaps more often than not that jury verdicts are predicted. The psychological receptiveness of the jury frequently controls the finding.
I doubt not.
If Dr. Harris' testimony has weighed heavily against Frank in the mind of the jury, the defense will find it extremely difficult to remove that weight.
The Solicitor General may have been far more astute and incisive, too, than some have thought, when, time and again, he claimed to have been entrapped by his own witnesses that they were not now swearing the same things that a few weeks ago they swore readily enough.
Effect May Be Decisive.
If the Solicitor has managed to get it into the minds of that jury that Frank needs protection against actually damaging circumstances, that witnesses deliberately have been drilled to protect him against sinister things, that witnesses have been tampered with in his behalf all of which things may be inferentially set up, without many genuine reasons therefor being given then a psychological effect will have been achieved that may prove dangerous in the extreme to the defendant.
Now, I do not mean to say the State HAS succeeded in doing that, and I hardly see wherein those impressions would be warranted altogether in the minds of the jurymen, still Dorsey and Hooper are driving at SOMETHING and it may be they are driving at that exact psychological effect!
And you never can tell.
The way of a serpent upon a rock, of an eagle in the air, and of a man with a maid these things have been said to be the strangest of all things. But the fourth strangest thing, and there may be so many as four superlatively strange things, is the way of a jury with a defendant at bar!
Therefore, if Hooper and Dorsey have been seeking, through the clever manipulation of their own witnesses and through the still cleverer directing of the cross-examination into desired channels, and if they have succeeded, which no man possibly may know now, the art employed has been consummately far-reaching and keen.
It will brace up the amazing story of Conley wonderfully and make his tale the easier for the jury to accept as true, and it will in inverse ratio discount the defendant's statement, moreover, if the jury can be brought to that psychological status suggested in this article, if it be the true purpose of the State to bring it there.
Situation Rests on "Ifs."
There are a good many "ifs" in this idea, to be sure but all psychological situations are builded largely upon "ifs."
That the State is undertaking to establish a psychological effect in at least one other direction, too, is evident in the way it insists, over and over, that Frank was "nervous" or "extremely nervous" just after the crime was committed the idea being that if he was agitated it likely was because of his guilty conscience.
The State has combated this wonderfully well, in so far as the substance of its denials are concerned and yet into this idea obtrudes the thought that maybe here, again, the State has been cleverer than the defense has imagined, by forcing the State rather to overdo its hand in that direction!
Now, these suggestions may be more or less elusive and hard to get hold of, but they are in no way impossible. Indeed, when it is remembered that the State all along has been developing a rather weak circumstantial case against Frank always up to its star witness, Conley at once both its hope and its despair and that the story of that witness is grimly grotesque, in parts strenuously straining on the imagination, based, as it is in portions, upon admitted lies and misrepresentations, the great help and assistance to the State of a mentally receptive jury may be, and doubtless will be, appreciated immediately by the reader.
In any and every aspect of the case it is but the simple truth to say that both the State and the defense have been forced to the skating on dangerously thin ice more than once so far.
PAGE 1, COLUMN 5
Roan Holding Scales of Justice With Steady Hand
By L. F. WOODRUFF.
Emotion's entire gamut is daily run on the screen of faces watching the Frank trial.
A student of facial expression can find anything he seeks by watching the throng of spectators a half hour.
A glance at one man may show a sneer of hate as bitter as gall. His neighbor in the next seat will probably be smiling in amused content as if he were witnessing the antics of his favorite comedian.
Looking to the left he may see fear as vividly depicted on a countenance as trapped felon has ever felt. And another glance might show a spectator in studious contemplation as rapt as that of a philosopher endeavoring to fathom a new frailty in human character.
Men have been mad, and shown it, during the progress of Atlanta's most famous criminal case. And men have shown that they were glad to the point of jubilation at the very same instant.
Roan Utterly Impassive.
But throughout the tedious hours and hours of the hearing, one man sits, listening to every word. And he has yet to display the fact that his emotions are any more affected by the dramatic trial in which he is a commanding figure than those of a business man going through the daily routine of his prosaic grind.
That quality shows why the man is sitting there. If he were a man to show that his feelings were swayed as the tide of battle turned first for one side and then the other, he would not be qualified for the eminent position he holds.
Judge L. S. Roan is performing the arduous duties of presiding justice in the Frank case, because the people of Fulton County recognized that he is the man of the county's 250,000 best endowed by nature to perform this task.
His attitude throughout the hearing has shown that the people chose wisely and well.
Think of his position. It is one of supreme importance just at this time, when passion and prejudice are more likely to rule than cool reasoning.
It is his work to uphold the theory that Justice is blind, and that the are the blindfold that darkens the vision of the goddess. He must see that the scales are evenly balanced. He must be sure that the sword is sharp.
There are scores, yes hundreds, of people in Atlanta to-day convinced absolutely of Frank's guilt in the Phagan mystery, and it would take a power of inconceivable magnitude to change their mental attitude.
There are scores and hundreds right here who believe thoroughly and honestly that Frank is innocent of any crime, and is as cruelly a persecuted person as the earth has known since the days of the martyrs. And so firm is this belief that it could not be shaken by dynamite or earthquake.
No Doubt as to Fairness.
Judge Roan's position and his oath of office call on him to see that both of these classes are firmly convinced of one fact in common, and that is that the case of Leo M. Frank is being fairly, honestly and effectively tried according to the law and evidence.
When he does this, he is removing a tremendous amount of the poison in the case. People are too prone to hint that a man's money can assure him of safety in any act he may commit. People are too likely to say that law and order becomes as nothing beneath a weight of prejudice.
Every word that Judge Roan speaks is as eagerly listened to as the voice of a diva. His every action is watched as closely as those of the President of the United States are by his secret service protectors.
Therefore, in action as well as in word, the judge must be impartial. Therefore, he can not smile as one side or the other scores a point. He can not evince extraordinary interest if it is apparent that the lawyers are about to tear to shreds the story of a witness. He must make a mental picture of everything in the long-drawn-out battle in order to give his final instructions to the jury, but he must not permit this picture to be reflected on his face.
And he has not.
His rulings have been quick. They are spoken in a low voice, just loud enough for counsel and witness to hear. In rendering a decision, he rarely straightens himself from the reclining attitude he assumes in the office chair.
Heat Hard on Judge.
He sits through the long hours, his right hand waving a huge palm leaf fan, though two electric fans are turned on the bench. He needs all three, for the courtroom is stifling hot, and Judge Roan is no longer young. Occasionally he mops a hairless spot on his high forehead with a handkerchief.
Several times during each day during the duller moments of the trial, he speaks a smiling word to some member of the bar, not connected with the case, who passes the bench or exchanges pleasantries with a court attach .
But his mind is never off the burning issue that he must play so important a part in deciding.
PAGE 3, COLUMN 7
FRANK JUROR'S LIFE ONE GRAND, SWEET SONG NOT
O. B. KEELER.
The juror's life is not unmixed with care.
Look him over next time you attend the Frank trial. Size up his little job. Weigh his responsibility. Consider his problems.
And then, if seeking employment, go out and sign a contract to make little ones out of big ones.
It's a more satisfactory way of earning $2 a day.
The juror's business is to collect evidence by the earful, sift the same, separate the true from the false, and make it into a verdict as between the State of Georgia and Leo Frank.
On the face of it, the plan is beautifully simple.
But the beauty is only skin deep.
You are reckoning without the lawyers.
Here Entereth the Lawyer.
The simple-minded layman and that rating includes the juror starts of a lawyer is to extract evidence from the witness in available form for proper consideration by the juror.
It speedily develops that the full intent of counsel is to prevent the witness from unburdening himself in any way whatsoever. The more expensive the counsel, the less information the opposition will be able to wheedle out of its star performers.
The method of blocking is objective that is, it is by means of objections. It appears that our system of jurisprudence takes cognizance of the juror as a mere babe in arms, not fit to assimilate the strong meat of evidence straight.
How the Juror Is Spared.
So he is sedulously raised on the bottle.
Mr. Dorsey (for example) has a witness by whom he is aching to show that Leo Frank was nervous the morning he was apprised of the tragedy. Mr. Rosser and Mr. Arnold are equally positive that the witness is not competent to judge if Mr. Frank was nervous. Also they are quite sure that the bottle-fed juror is utterly incapable of deciding if the witness is competent to decide if Mr. Frank was nervous.
They do not intend that the juror shall endanger his delicate thinking apparatus by grappling with any such abstruse problem.
So they fix it up this way.
Witness: "He insisted on having some coffee."
Mr. Rosser: "I object to the use of the word 'insisted.' It manifestly is a conclusion of the witness, and as such has no place in the evidence. I ask that the word be ruled out."
Objections Fix the Fact.
And the court orders it ruled out, thereby fixing the circumstance firmly in the mind of the juror. And then Mr. Dorsey twists the query around and gets the witness to state that Frank asked for coffee twice at his house and once at the factory.
Just why that arrangement suits the defense better than the simple proposition that Frank insisted on the coffee is not entirely plain to the layman.
But it seems that the juror is to be shielded from any breath of anything not bearing strictly on the guilt or innocence of the accused.
Specific and accurate information being thus at a premium, the juror probably is amazed when Mr. Rosser, vibrating with grief and indignation, protests against Detective Scott reading from some notes he made while working directly on the case.
The court also is shocked, but permits Mr. Scott to "refresh his memory" by means of the notes and then retail the product of such refreshment by word of mouth.
This is agreeable to Mr. Rosser and the court, but when Mr. Dorsey offers further to refresh Mr. Scott's somewhat wilted recollection, Mr. Rosser intimates at the top of a robust voice that such a thing shall be accomplished only over his (Mr. Rosser's) inanimate form.
And that promptly affords the bottle-fed juror some more evidence to ponder.
Mr. Dorsey insists it is his right to "lead" the witness.
The witness demands to know if he is suspected of holding back.
Mr. Dorsey declares he has been trapped by the witness, and Mr. Rosser appends the somewhat doubtful comment that Frank Hooper is a wise man.
Here Are More Problems.
Now, add this to the problems of the troubled juror:
Is Mr. Scott balking?
If so, has Mr. Dorsey the right to hold an ear of corn in front of him?
Has Mr. Dorsey been trapped?
And, in view of the foregoing, is or is it not Mr. Hooper a wise man?
Other problems for the exercise of the Frank juror on the side, as it were, would include the following:
Should Mr. Dorsey be permitted to examine a witness without interruption by Mr. Rosser?
Should Mr. Rosser be permitted to object?
If so, should Mr. Dorsey scowl while Mr. Rosser is objecting?
Does Mr. Rosser consider whisky a good remedy for indigestion?
Would He Hide Evidence?
Would anybody think that Mr. Rosser would have anything to do with suppressing evidence, except in the regular and approved objective method prescribed by law?
Is Mr. Scott a trained sleuth?
And one more thing that tends to lend an acrobatic cast to the mental processes of the Frank juror.
Once in a while not very often, it's true but once in a while something gets by Mr. Rosser and Mr. Arnold. The witness may be quick on the trigger. Or Mr. Dorsey may manage to frog up a subtle query with a joker in it.
And after the storm of objection has thundered itself out and Mr. Rosser is mopping the signs of honest toil from his brow, and Mr. Dorsey is wearing an expression similar to that of a cat that knows all about what happened to the canary why, then the court orders the stenographer to strike out the answer.
And the obliging juror is instructed to forget it.
Yes?
Would You Forget it, Too?
Just suppose that you, being an honest and hard-working juror, trying in an honest and hard-working way to extract a morsel of real information from a jungle of cross-questions and crabbed answers and objections and oratory and recrimination suppose that the honest and hard-working witness should beat 'em to it for once, and disgorge something really interesting.
And then suppose the judge should tell you to wipe it right off your mental slate, and not remember it, or consider it, or think about it any more forever.
You would do it, would you not?
Neither would we.
The juror's life is not unmixed with care.
PAGE 51, COLUMN 3
BRILLIANT LEGAL WARRIORS WHO ARE BATTLING FOR FRANK
These two men are recognized as champions of the Atlanta bar.
LUTHER Z. ROSSER. REUBEN ARNOLD.
Saturday, 2nd August 1913 Defense Threatens a Mistrial PDF
